Relevant and even prescient commentary on news, politics and the economy.

How the Supreme Court’s King v. Burwell Debacle Will End [Addendum added]

I have known for the last five weeks—since January 27, to be exact—that the Supreme Court will uphold the Administration’s interpretation of the federal-subsidies provisions in the ACA when it issues its decision in the infamous King v. Burwell case whose argument date at the Court is Wednesday.  I also have known since then that the opinion will be unanimous, or nearly so, and that Antonin Scalia is likely to write it but if not will join it.

I considered revealing this to AB readers earlier, but feared an F.B.I. inquiry into suspicions that I hacked into the computer system in Scalia’s chambers, so I hesitated.  But it’s now or never—Scalia will make his position clear at the argument, and then I will have lost my one chance, ever, for a career as a Vegas oddsmaker—and I think I can persuade the F.B.I. that I received my information not illegally but instead from a report recounting extensive, pointed comments Scalia made in open court on January 21, in a case that is not about the ACA but is, like King, about the methods the Court uses to interpret lengthy, highly complex federal statutes with multiple interconnecting sections and subsections whose purpose is to establish a cohesive policy.

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Dear Greg Sargent: “Re your Morning Plum reference to Krugman’s column today”

Update appended below.


After a two-and-a-half-month hiatus from regular blogging here—most of my few posts this summer related to my passion about animal rescue and animal welfare—I’m once again feeling like posting about politics, at least more regularly than I posted this summer. (And maybe soon I’ll once again feel like posting about legal issues, but I don’t yet, so y’all who’ve been waiting for that with bated breath, well ….)

I wanted a break from all-politics-and-law-all-the-time, and (mostly) took one.  My active reentry here at AB began with two posts within the last few days—one that I thought would get some attention, but did, not; the other that I thought would get little attention, but got more than a little.

After reading emailed Greg Sargent this afternoon an embarrassingly long… eeeek … rant about that post of mine that got little attention—and, while I was at it, about two of my current political obsessions: the silly Hillary Clinton presidential-nomination anointment, by the press and (unwittingly, I think, courtesy of the press) the Democratic Party; and the silly six-year failure of our current White House standard bearer to ever trouble himself to … y’know … like … engage in any refutation of misinformation by … y’know … stating facts, coherently and specifically—I jumped all-in (to use an “in” cliché that really annoys me, but fits here) today.

But since emails from no-names are treated, I’m sure, as emails from no-names, and because, well, I’m just really in the mood right now, I’ll share my rant with all you AB readers, should any of you actually be interested:

Greg, you write this morning in the Morning Plum:

“REPUBLICANS AND THE ‘LAZY JOBLESS’:  Paul Krugman’s column today marvels at the ways GOP lawmakers continue to suggest the unemployed are choosing their plight, even as benefits have been slashed and we’re treating them with “unprecedented harshness.” But why?”

The answer to your question is, of course, that most people have no idea that unemployment compensation benefits have been dramatically slashed and are, as Krugman highlights, far lower than they have been in relation to the level of involuntary short-term and long-term unemployment in many decades.

Just as most people have no idea about one after another after another other facts concerning public policy—in Florida, for example, there is a TV ad asking people to vote for Rick Scott against Charlie Crist because “Obamacare has raised healthcare costs” and is “taking money from your pocket,” or words to that effect.

And of course most people think government employment—federal, state, local—has increased during Obama’s presidency; of course, actually, it has decreased, dramatically.

And on and on.  Which has been the case throughout Obama’s presidency.  Neither of our two current Democratic national standard bearers, Obama and Hillary Clinton, would be caught dead actually educating the public about, y’know, actual facts; neither one will speak in anything other than banal generalities.  Clinton, who probably could actually educate the public about such things as facts, instead talks incessantly about how excited she is about her daughter’s pregnancy—because, y’know, we’re all so deeply interested in this–and makes childish jokes about her failure to declare an intention to run for the presidency, deigning to add a few banalities about such things as income inequality so that we all know that her heart is in the right place.

And because the punditry insists that Dem presidential candidates are fungible, Clinton’s home free.  Clinton, Warren, and male longtime progressives such as Sherrod Brown, who can’t run because, well, Hillary Clinton probably will run, are all the same; one’s as good as the other.  After all, didn’t Clinton say in some speech back in November 2007 that, yeah, maybe income inequality has become a problem? I mean, who needs any more evidence that she’s an economics progressive than that?!

Giving speeches is, of course, what Clinton does.  In November 2007 she had been a senator for nearly seven years.  During which she voted for a really bad bankruptcy bill, and did nothing at all, at least to my knowledge (or, I think, to anyone else’s), that could matter to, say, people who aren’t upscale women trying to break corporate-hierarchy glass ceilings and such.

I’m a contributor to the blog Angry Bear, and last Friday, after learning about Boehner’s comments from Krugman’s mention of it on his blog, I posted an item about it titled “John Boehner Says the Obama Economy Has Eliminated Involuntary Unemployment!  Seriously; that’s what he said. The Dems should use this in campaign ads.”  The title was not facetious; I pointed out that Boehner’s representation of fact necessarily presumes a thriving economy in which jobs are available for anyone who wants one; in other words, we really have full employment now.  My post gained no attention, best as I can tell, so I’d like to see someone whose blog posts do get attention make the point—because it is an important one. Isn’t it?  My post is [here].

Apologies for this lengthy rant.

Beverly Mann

As for Obama, coherency and specificity, which require actual explanation rather than sound-bite-speak, are just not his thing; I understand that.  By which I mean that I understand that that is so—and by which I don’t mean that I understand why it is so, although I suspect that the culprit is a stunning lack of mental agility coupled with an apparently overriding belief that he need not do anything by way of outreach, education and persuasion, that he doesn’t really feel like doing.

As for Clinton … well … speaking in specifics is not her thing, either.  It doesn’t pay well, and policy specifics would entail her actually learning specifics (better late than never, but, whatever) and maybe even proposing specifics of her own.  Okay, specifics that someone in her quarter-century “orbit” (the media’s euphemism for closed circle of decades-long Clinton operatives) learning specifics.  Sorta like what Warren and Sherrod Brown have done by themselves!

We’re all, of course, tremendously happy for Clinton and her husband that they’re about to become grandparents.  It’s just that we’re interested in other things, as well.  And just that other thing that she’s interested in: ridiculous, cutesy, will-she-or-won’t-she games.

I’m a progressive who cares about more than 1980s-and ‘90s-era women’s issues. (And not just because I’m aware that it is no longer the 1980s or ‘90s; some of those issues remain potent and important, but they are not the end-all-and-be-all of progressive economic concerns, some of which actually have to do with men as well as women.)  I don’t want any more generic, look-at-who-I-am-rather-than-what-I’ve-actually-done theater-of-the-ridiculous. Been there, done that. (Okay, I was never a big fan of Obama, but supported him against Clinton because I feared another triangulator president—one who would be hemmed in by her husband’s 1990s policy choices, no less. One who still is hemmed in by her husband’s 1990s policy choices.)

I’ll end this rant by asking this question: Why have the progressives who want so badly to see a Warren draft not trying to encourage, say, a Sherrod Brown draft?  Wrong gender? Really?? Warren’s popularity comes not from her gender but instead from her economic population and deep knowledge of, emersion in, and passion for actual specific policy issues.  Brown has that, too.  And he, unlike Warren, may simply be waiting for someone to ask him to run.

Take a look, progressives. I’m serious.  It’s time now to support an economic progressive who’s the real deal, not someone’s who really just a political celebrity.  My dream ticket is Brown and Jeff Merkley.  Both have been in the economic-progressive trenches for decades. Neither is the spouse of a former president, even a popular and still-popular one who actually knows how to make a point without using a denegrating, condescending manner to do it.

That said, if what Dems are looking for, and if Dem presidential candidates really are fungible, then how about Kim Kardashian?  Who knows?  She may even be a genuine economic progressive.

We economic progressives finally have the ear of a large segment of the population.  And we’re going to squander it by nominating for president someone who’s little more than just a professional political celebrity?  Why?  Seriously; why?


UPDATE: Turns out that I’m a few days late to this party, at least as it’s host.  Molly Ball posted a piece on Sept. 19 on The Atlantic’s website titled “Does Hillary Clinton Have Anything to Say?” Ball reaches the same conclusion that I do: The anwer is, no.

But there are, as I noted above, national politicians in addition to Elizabeth Warren, who do.

I mean, look: Just because your husband was a popular president in the 1990s doesn’t mean that you get to be the Democractic presidential nominee yourself.  Your prsumption to the contrary notwithstanding.

Although Molly Ball, Bernie Sanders and I are, thus far, the only partiers. Want to join us?

Updated 9/22 at 4:10 p.m.

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Chickens vs. A Turkey

Okay, so most of you who don’t live in Iowa (and most of you don’t live in Iowa, since it’s not a populous state) probably are unaware that the outcome of the election to replace retiring progressive Iowa senator Tom Harkin—which in turn may determine party control of the Senate—may turn on a dispute between neighbors in a subdivision of homes near a lake in Brooklyn, Iowa.

I don’t live in Iowa either, but I’ve known about this for nearly a month.

The dispute is between Democratic nominee Bruce Braley and his wife and their neighbor, a woman named Pauline Hampton, who raises chickens on her property, which abuts the Braleys’ backyard.  Hampton’s chickens regularly escape from their coop and dirty the Braleys’ and other neighbors’ yards.  Braley’s wife had repeatedly asked Hampton to keep her chickens cooped rather than simply allowing them to roam freely and then come home to roost, but to no avail.

After a verbal spat between Hampton and Braley’s wife, Braley contacted the president of the homeowners’ association and asked that he intervene with Hampton.  He said he did not want to litigate the matter in court and hoped instead that the homeowners’ associate president could prevail upon Hampton to keep her chickens cooped.

Instead, though, the homeowners’ association president, a Republican activist, acted neighborly and reported the private conversation to Republican senate nominee Joni Ernst, a noted constitutional scholar and historian.  Mistaking himself for a court clerk, or believing that Braley had mistaken him for one, the homeowners’ association president apparently told Ernst, and in turn the news media, that Braley had contacted him in order to file a lawsuit.  Something like that, anyway; as I said, I’m not an Iowan, so I’m not familiar with the Iowa way and Iowa neighborliness and such, so I may have missed something here.

Anyway, the political news media of course reported Braley’s contact with the homeowners’ association president as NOT THE IOWA WAY, since Iowans do not resolve conflicts by asking homeowners’ association presidents to mediate conflicts.  Not homeowners’ association presidents who also are Republican activists, anyway.

Well, today, Greg Sargent posted a blog post at the Washington Post titled “Will Iowa Senate race be about issues, or about chickens?”  He reports on minimum-wage numbers-crunching included in a new report by the Center for American Progress Action Fund and says the report’s conclusions about the impact a wage hike would have in Iowa “contrast starkly with Ernst’s pronouncements about it.” Those pronouncements include statements that the minimum wage should be abolished or at least remain forever at its current federal hourly rate of $7.25, and that most minimum wage earners are in their teens or early 20s and in any event are not their family’s main breadwinner.

As the election nears, Ernst likely will continue to lay eggs.  But the ones already hatched expose her for the turkey that she is.

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Browncare. Go for it, New Hampshirites! It’s BETTER!

In a new radio interview, [Massachusetts senator-cum-New Hampshire senate candidate Scott] Brown professes support for protecting people with preexisting conditions and other general goals of the law. But he reiterates his support for repealing Obamacare, claiming its goals should only be accomplished by states:

“I believe states can do it better. They can certainly cover preexisting conditions, cover kids to X age, whatever you want — catastrophic care, covering those who need additional coverages…other states have addressed these issues.”

But when asked whether, under Brown’s vision, states could decline to offer protections for preexisting conditions, Brown replied:

“I have to respectfully disagree. It’s something that’s very important for our state and its citizens. It’s something that more than likely would be covered in any type of plan that we offered…that is one thing that is important to me. I’ve already voted on something like that. And I would continue to support that.”

That appears to be a reference to Brown’s previous support for Romneycare in Massachusetts.

— Morning Plum: Scott Brown calls for replacing Obamacare with Romneycare, Greg Sargent, Washington Post, today

I, too, believe states can do it better.  If, say, they wanted to.  Which, since there was nothing to stop from doing better, or even from doing as well as, Obamacare, before 2010, and in fact there still is not—and since only one state, Massachusetts, did in fact do better. (Romneycare’s coverage of everyone who needed subsidies did not depend upon whether the person’s county agreed to accept payments from the state for people whose income is between the poverty level and 133% of the poverty level, after all, which for those who fell into that category, was, y’know, better.)

Since Obamacare is, in essence, Romneycare on a national level, with the exception that (to my knowledge) Romneycare had no distinction between in the way the subsidies worked, on the one hand, for people whose income under Obamacare means that they have no coverage at all if their state has not adopted the Medicaid expansion, and people whose income entitles them to federal subsidies under Obamacare irrespective of whether or not that their state has not adopted the Medicaid expansion.  And with the exception that, well, under Romneycare, the total cost of the subsidies was paid by the state of Massachusetts.  Rather than, y’know, the federal government.

So, take note, New Hampshirites: Scott Brown wants your state to pay the healthcare insurance subsidies for New Hampshire residents who now receive federal subsidies under Obamacare or who apparently are about to receive coverage paid virtually entirely by the federal government once New Hampshire adopts the Obamacare Medicaid expansion, as it reportedly is about to do.

Well, okay, he doesn’t want New Hampshire to actually provide subsidies to everyone who needs subsidies in order to afford healthcare insurance, as Romneycare did.  No, he wants those subsidies to go only to a certain segment of people who can’t otherwise afford healthcare insurance and who, until this year via Obamacare didn’t have insurance.  Because, y’see, it’s better—his word—to have a substantially higher percentage of New Hampshirites uninsured because they lack access to subsidies to help them afford it.

And he also thinks it’s better—his word—to have insurance premiums skyrocket because, under Browncare would, like Romneycare and Obamacare, prohibit insurance companies from declining coverage to people with preexisting conditions or charging them higher premiums, but unlike Romneycare and Obamacare, would not require anyone to purchase healthcare insurance before, say, they needed major medical care.

Unfortunately, though, Brown is not a candidate for governor or even for the state legislature.  So, as popular as Browncare is likely to be in New Hampshire, electing him to the U.S. Senate won’t cause New Hampshire to take over healthcare subsidies for some state’s residents who now receive federal subsidies under Obamacare, and to return many others to their pre-2014 uninsured status.  And electing him to the U.S. Senate won’t even cause healthcare coverage premiums to price many (most?) individual-market policyholders out of the individual market.

Well, at least not within the following two years, anyway–since Obama will remain president until Jan. 2016.  Or, if Obama is impeached and convicted of high crimes and misdemeanors, Joe Biden will be president for the remainder of the current presidential term.  If Brown is elected, this will be very frustrating for everyone who voted for him, as the continued presence of a Democrat in the White House will prevent New Hampshire from making it’s healthcare coverage system worse, er, I mean better.

Of course, there’s always the option of a coup.

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Libertarian? Or Fascist-Light?

The shooting death by police of Ferguson, MO teenager Michael Brown, and what has happened in the aftermath, has been blanketing the news for the past few days. It’s a story about race, but it’s also become a story about the power of the state and how it’s wielded, and against whom.

So my question is this: Where are the libertarians?

Why aren’t libertarians talking about Ferguson?, Paul Waldman, Plum Line, Washington Post, yesterday

The answer to the question that the title to that post asks is: they are. Libertarians are talking about Ferguson.Waldman’s question addresses a linguistics problem, a misappropriation of a particular ideological term, “libertarian,” by those who ascribe to a narrowly prescriptive ideology that adopts extreme economic libertarianism and certain aspects of fascism.

It is a curious brand of fascism that is peculiarly American, in that it artificially distinguishes between federal powers and state and local ones. A veritable foundation of this ideology formally or tacitly authorizes the use of state and local government police powers—by police, prosecutors, judges, prison guards–to engage in wholesale violations of American constitutional and international human rights. Federal prosecutors and federal judges engage in abuses, including on presumably-rare occasions of actual illegality, but now, finally, at least there’s the possibility of actual scrutiny of federal prosecutorial excess. There remains no working mechanism by which federal or state judges will be investigated for actual illegality in relation to their judicial office, unless the conduct involves an overt monetary bribe or express monetary extortion; judges themselves operate within a statutory system whose very essence is cover-up by their colleagues, and every attempt, including by members of Congress, Republican and Democrat, to change this statutory sham vis-a-vis federal judges is batted down with cries from several Supreme Court justices, including the two Clinton appointees, about judicial independence. (Freedom! Liberty! Judicial Independence!)  As if an independent office of inspector general, as statutory proposals would establish, couldn’t distinguish between unethical or outright illegal conduct and, well, everything else.  And wouldn’t be forced to do that.

About a month ago, Simon Lazarus of the Constitutional Accountability Center wrote an article in The New Republic titled “John Roberts’ Supreme Court is the Most Meddlesome in History” and subtitled “How radical libertarianism is reshaping the bench.” I remember thinking when I saw that article that the primary title is correct but the subtitle is not. Certainly there are some radical libertarians—those who want to eliminate virtually all taxes, federal and state, an virtually all government regulations and civil and criminal prohibitions, federal and state, and who also are, as Waldman puts it, talking about Ferguson. And who want to dismantle the prison-industrial complex. But best as I can tell, they’re not Republicans, and they’re certainly not federal judges, much less federal Supreme Court justices. Accepting their pose as libertarians, without the modifying adjective “economic,” is buying their marketing campaign.

Freedom! Liberty! Libertarianism! The new and improved variety, marketed as the late 18th century strain. Back from the future. I guess.

What most of this crowd actually is is sort of classic-fascist-light, not libertarian. By which I don’t mean that they’re Nazis; Nazism was (and is) only one brand of fascism. I mean fascism more along the lines of the Benito Mussolini or Francisco Franco variety—a pairing of a muscular state police force left to its own (and the dictator’s) devices, and moneyed interests whose support the dictator an his party needed. Modern U.S. neo-federalism, a.k.a. “states’ rights!”–i.e., the right of state and local government officials and employees to violate individual, non-Republican humans’ constitutional rights—is libertarianism only in a George-Orwell-comes-to-Madison-Avenue sense, but it underpins much of Tea Party/Supreme Court libertarianism, if only ostensibly.

One of the most stunning sentences I’ve ever read in a Supreme Court opinion, a sentence that has not received nearly the amount of attention in the general news media or by Democrats that it deserves, is John Roberts’ express statement in the majority opinion in McCutcheon v. FEC, this year’s Citizens United sequel, that extremely wealthy campaign donors become “constituents”–constituents, in the literal election-law, voter-ID sense–of members of Congress not by living in the senator’s state or in the representative’s district but instead by buying access and the right to author proposed legislation. Ordinary folk are constituents only of the elected officials in whose voting jurisdiction they have their primary (for most people, their only) residence, but the Koch brothers are the constituents not just of Kansas’s senators and Wichita’s congressional representative but also of any other senators and congressional representatives that they choose to co-opt as their legislative proxy, for a fee. This, Roberts said, is at the heart of our democracy.

Which indeed it now is, formally and officially, as per the Supreme Court. It’s at the very heart and soul of our democracy these days–our democracy, alone among democracies, since ours is the only democracy in which this flavor of freedom!, liberty!, is packaged as libertarianism. It’s a specialty flavor that would be recognized by 1930s Europeans for the albeit-milder iteration of the political ideology that it really is. And that is recognized, I’d bet, by most close observers of the Supreme Court’s state-courts’-and-state-prosecutors’-and-local-police-officers’-and-state-and-local-prison-guards’-rights-to-violate-individuals’-constitutional-rights-because-the-Constitution’s-structure-requires-it jurisprudence.

This ideology is libertarian only as some characters in Lewis Carroll’s novels, or the Koch brothers, would define that word.  Or as five current Supreme Court justices do, as suits their focused interest of the moment.  Or of the Conservative Legal Movement era, which has in fact been very focused for more than three decades now.  So any moment will do.

Pick your moment.  Any moment.  They sure do.  Just call what you’re doing anything but what it actually is.

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What to Do When a High-Profile U.Chicago Economist Says the Airline, Telephone and Package-Shipping Industries Prohibit Use by Preexisting Flyers, Callers and Shippers: If you’re a liberal, take this ball and run with it!

There’s no question that the Affordable Care Act’s rollout has been “rocky,” to borrow the common parlance of the Beltway. The Web site troubles and shifting health coverage for some Americans, despite over-assurances from President Obama during the 2010 political debate, have naturally turned off some people. A much-ballyhooed poll from CNN yesterday shows that support for “Obamacare” has dropped to an all-time low.

But conservatives toasting the apparent turn in public opinion ought to look a little closer at the polling data. It’s true that only 35 percent of Americans favor the law, while 43 percent oppose it. But there’s a crucial third group: 15 percent oppose the ACA because it’s “not liberal enough.” That means that 50 percent of Americans either support the law or want policy changes that shift leftward.

Should Democrats press the public option?, George Zornick, The Plum Line, Washington Post, Dec. 24

Wow.  A man after my own heart.  It’s a recognition that, with the single exception of the disastrous rollout of, which is purely a technology issue, the high-profile issues concerning Obamacare since Oct. 1 highlight not generic problems with government involvement in healthcare insurance but instead the problems of a system that piggybacks on the for-profit private insurance industry and neo-federalism-structured federal programs that rely heavily or entirely upon cooperation of state governments.

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